H-2B Adjudication Resumes

As of March 17, 2015, the United States and Immigration Services (USCIS) announced that it has resumed adjudication of H-2B petitions for temporary non-agricultural workers.

The USCIS suspended processing of H-2B petitions on March 5, 2015, a day after the Department of Labor (DOL) ceased processing prevailing wage determinations and applications for labor certification required under the H-2B program pursuant to an order of a federal district court in Florida.

The federal court vacated the DOL’s 2008 H-2B regulations, ruling that under the Immigration and Nationality Act (INA) the DOL does not have authority to issue regulations in the H-2B program.

The DOL filed an unopposed motion to stay the court’s order on March 16, 2015 stating that the USCIS will resume the processing of H-2B petitions based on temporary labor certifications issued by the DOL. The USCIS, however, announced that premium processing of H-2B petitions remains suspended until further notice.

The H-2B program allows U.S. employers to hire foreign non-agricultural workers to perform temporary services on a one-time, seasonal, peak load or intermittent basis. These workers are usually needed in the construction, health care, lumber, manufacturing, food service/ processing and resort/ hotel industries.

Each year the USCIS allocates 66,000 visas for the H-2B program, with 33,000 allocated for the first half of the fiscal year and 33,000 for the second half.

The first half of the fiscal year is between October 1 and March 31 while the second half of the fiscal year is between April 1 and September 1.

The USCIS has announced that the H-2B cap for the first half of fiscal year 2015 was reached on January 26, 2015. As of February 27, 2015, the USCIS received a total of 16,519 H-2B petitions for the second half of the fiscal year and 14,740 beneficiaries have been approved while 1,779 were pending.

The H-2B process starts with the filing of a temporary labor certification for H-2B employment with the U.S. Department of Labor. When the labor certification is issued, it must be attached to the H-2B petition on Form I-129 by the petitioner and filed with the USCIS.

The petitioner of an H-2B petition may be a U.S. employer or U.S. agent. However, the petitioner must show that the need is only temporary in nature. He must demonstrate that the work will terminate after a definite period of time.

Multiple beneficiaries may be included in a single H-2B petition if they will all be performing the same work for the same period in the same location.

The beneficiary of an H-2B petition may be in the United State or overseas. The H-2B petition can be filed with an unnamed beneficiary if the beneficiary is overseas and will be applying for the visa at a U.S. consular office abroad. However, if the name of the beneficiary is required to establish eligibility or that the beneficiary is not from a participating country, the beneficiary must be named in the petition.

When approved, the validity of the H-2B visa will reflect the period indicated in the labor certification. This should reflect the period of the employer’s need. Generally, the period granted is limited to one year which may be extended for another year up to a maximum of three years.

The Philippines as well as 67 other countries have been identified by the USCIS as participating countries under the H-2B program in a list released in January 2015. Five of these countries, namely, the Czech Republic, Denmark, Madagascar, Portugal, and Sweden, are new additions to the list.

An H-2B petition may be approved for a beneficiary who is not from any of the participating countries only if the Secretary of Homeland Security finds that it is in the interest of the U.S. to approve the petition.